Courts say automatic cannabis expungements are too difficult

Under New Mexico’s Cannabis Regulation Act, prior marijuana arrests are supposed to be automatically expunged. But the state’s courts say that the task is too much for them to handle and are encouraging lawmakers to place the burden of expunging records on the individual. Cannabis advocates say the responsibility should remain with the courts to ensure equity.

Expungement provisions in the law are the leading tool in addressing harms done to individuals and communities by the War on Drugs, according to advocates. Under these provisions, those with records for simple, non-violent cannabis-related crimes that are no longer illegal are to have those records wiped.

Clean Slate

Cannabis arrest records can pose a major obstacle for those seeking employment or trying to buy a home, and advocates say it isn’t fair to allow former cannabis criminals to continue paying for their offenses when laws have changed for everyone else.

But opponents of the provisions argued that expungements would make it more difficult for businesses to properly vet clients and prospective employees.

Nevertheless, the law was passed with a great amount of significance placed on the expungement provisions as being a sign that New Mexico’s cannabis bill was more progressive than those in some other parts of the country.

Under the law, records of cannabis convictions are to be held by courts and state agencies for no longer than two years following the person’s conviction or release. For offenders with complex cases involving non-cannabis-related charges, only the cannabis charge will be dropped.

Heavy Burden

The legislators who crafted the law appear to have expected these expungements to happen automatically, but the state’s courts say there is no mechanism by which they can immediately wipe the records. Court officials must comb through records by hand to determine which should be expunged and which should be kept.

The courts have argued that they have neither the staff nor the funding to accomplish such a task. In 2021, the Department of Public Safety submitted lists of potentially eligible cannabis cases for expungement to district attorneys around the state. Last August, the Second Judicial District Attorney’s office in Bernalillo County—where most of New Mexico’s cannabis charges have been filed—said it had already reviewed over 11,000 criminal cannabis cases for eligibility. Officials reportedly estimate that the number of eligible cases across the state could total around 155,000.

Now it seems as though progress has grinded to a halt.

In September, Supreme Court Chief Justice Shannon Bacon told the Courts, Corrections and Justice Committee that the responsibility for expungement should fall on the individual who was accused of the crime. “We think there’s a more straightforward and simplistic way to handle this that will take what has been an incredibly onerous process off the judiciary and put the control in the hands of the person that’s had the conviction,” she said.

Bacon said that court efforts to expunge records have been hampered by complications related to the number of cases that include other crimes along with cannabis offenses. Efforts have also reportedly been interrupted by prosecutors in some parts of the state that have filed objections to the expungement of specific records based on a provision in the law that allows them to object if hiding the record “would pose an unreasonable risk of danger to public safety.”

“Judges are spending untold hours addressing objections to this process, whether there’s a cannabis charge or not,” Bacon said.

In November, she said that there is no simple way to do a broad search of state records to identify eligible cannabis cases. “You can’t just put in a magic code that says ‘cannabis,’ and it will identify those cases where there are great charges,” Bacon told the Courts, Corrections and Justice Committee.

There is already a process in place for people to petition having their records expunged, but advocates say it’s difficult for the average citizen to navigate the steps necessary to identify court case numbers and collect all the necessary paperwork.

Other states with expungement requirements are seemingly suffering less from similar issues. Earlier this month, Connecticut’s Gov. Ned Lamont announced that the state had expunged 42,964 cannabis records ahead of legalization.

Passing the Buck

Co-author of the state’s Cannabis Regulation Act State Sen. Katy Duhigg said that shifting the burden to those who have cannabis records would be foisting the state’s responsibilities onto “the folks who are least able to bear it, which is the victims of the war on drugs, whom we sought not to burden further while fixing the mistakes of the past.”

The Cannabis Regulation Act has been lauded for its attention to matters of equity. Legislators worked extensively with community advocates to ensure that provisions for record expungements and support for communities that were negatively affected by the War on Drugs was included in the bill. Duhigg’s statements also seem to support the idea that automatic expungements align with the spirit of the law.

Experts say the troubles with cannabis expungements should eventually work themselves out as the current law has stopped the flow of incoming marijuana offenders. But that could take years or even decades if the current law is changed to relieve the courts of their responsibilities.

Not Quite Expunged

One of the more disconcerting revelations made about the expungement process during the Courts, Corrections and Justice Committee meeting is that expunged cannabis records don’t truly disappear. According to Bacon, those records are merely hidden from the public, remaining accessible to courts and police. Advocates say that retaining these records could lead to discriminatory practices from officials if they choose to target previous cannabis offenders. It’s unclear if she was referring to the two-year waiting period before a record is supposed to be destroyed or whether state agencies plan to keep them past that time.